In an article for AIS Health – RADAR on Medicare Advantage, Bass, Berry & Sims attorney Lindsey Fetzer discussed the Department of Justice’s (DOJ) focus on pursuing Medicare Advantage (MA) insurers for wrongdoing under the False Claims Act (FCA) related to recoupment of overpayments.
When asked about how the government’s use of the FCA has evolved in recent years, as related to MA, Lindsey responded, “since 2018, we’ve seen over $370 million in False Claims Act settlements related to Part C. And I think [that’s driven in part] by increasing maturity or sophistication by the relators but also by the regulators. There are more available settlements out there, and people are starting to understand these fraud cases more. Then of course with the continued uptick in MA enrollment — this year we might see the 50% threshold crossed — that means more money from the government and a bigger focus on enforcement.”
In response to a question about trends involving several current cases involving MA insurers, Lindsey said, “I think we’re seeing some of the historical risk areas with these cases, things like prospective reviews of medical records before a patient comes in for a visit and the concept of leading queries from coders to providers are practices that have been traditionally scrutinized. We also continue to see relators and the government focus on one-way retrospective chart review practices — one looks to add but not subtract diagnoses. In addition to these traditional risk areas, what you’re also seeing is an increased focus on in-home health risk assessments, the question [being] can you sustain a diagnosis based on [those assessments]…or do you need the follow-up treatment in the doctor’s office?”
Lindsey also discussed the challenge to Risk Adjustment Data Validation (RADV) audits by saying, “I think we will continue to see challenges to…the [lack of] fee-for-service adjuster or something more broadly defined. Without a fee-for-service adjuster, there is no acknowledgment as to the fundamental differences between a fee-for-service and capitated model. I think parties will continue to wrestle with how to create a level playing field. This will likely be addressed through litigation and other tools. I also think you’ll see challenges to the proposed use of extrapolation for RADV audits, particularly because the extrapolation methodology is not yet defined. And I think you’ll see challenges around equity. CMS has stated they will target areas that are ‘high risk’ for improper payments, improper payment, but it will be interesting to see how that plays out in terms of [audit selection].”
The full article, “On Top of RADV and Other Enforcement Tools, MA Insurers Should Watch False Claims Act Space,” was published by AIS Health – RADAR on Medicare Advantage on March 2 and is available online (subscription required).